Page No.# 1/8 GAHC010215222023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5680/2023 DHIREN CHANDRA BARMAN S/O LATE SATRAM BARMAN, R/O VILL- NAHARBARI, P.O.-BHOLABARI, P.S.-KALAIGAON, DIST- UDALGURI, ASSAM VERSUS THE STATE OF ASSAM AND 5 ORS. REPRESENTED BY COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, P.H.E. DEPT., DISPUR, GUWAHATI-781006 2:THE BODOLAND TERRITORIAL COUNCIL REPRESENTED BY THE PRINCIPAL SECRETARY BODOFA NAGAR KOKRAJHAR DIST- KOKRAJHAR BTC ASSAM PIN-783370 3:THE CHIEF ENGINEER (PHE) WATER ASSAM HENGRABARI GUWAHATI PIN-781036 4:THE ADDL. CHIEF ENGINEER CUM DIRECTOR PHED BTC KOKRAJHAR DIST- KOKRAJHAR BTAD ASSAM PIN-783370 Page No.# 2/8 5:THE EXECUTIVE ENGINEER PHE TANGLA DIVISION GOVERNMENT OF ASSAM TANGLA UDALGURI ASSAM-784521 6:THE ASSISTANT EXECUTIVE ENGINEER PHE TANGLA DIVISION GOVERNMENT OF ASSAM TANGLA UDALGURI ASSAM-784521 7:THE COMMISSIONER AND SECRETARY FINANCE DEPARTMENT GOVT. OF ASSAM DISPUR GUWAHATI 78100 Advocate for the Petitioner : MR. A GANGULY, MR T CHHETRI Advocate for the Respondent : SC, P H E, SC, BTC BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 27-07-2026 Heard Mr. A. Ganguly, learned counsel for the petitioner. Also heard Mr. I. Borthakur, learned standing counsel, PHE appearing for the respondent Nos. 1 & 3 and Ms. B. Bora, learned standing counsel, BTC appearing for the respondent Nos. 2, 4, 5 & 6. 2. The petitioner in the present writ petition has prayed for a direction upon the respondent authorities to consider his case for promotion to the post of Junior Assistant (Gr- III) against any of the vacant post so available in the PHE, Tangla Division. Page No.# 3/8 3. As projected in the present writ petition, the petitioner was initially appointed on 01- 04-1988, as Muster Roll Worker in the establishment of the respondent No. 6. Thereafter, in terms of the earlier decision arrived at by the Government for regularizing the services of Muster Roll/ Work Charged employees engaged prior to 01-04-1993, the services of the petitioner came to be so regularized vide issuance of an order dated 04-03-2005. The regularization of the services of the petitioner was against a personnel post created for him and the said post was stipulated to be abolished on the retirement/ death of the petitioner. The petitioner has further projected that although he was so regularized against a post of Khalasi (Gr-IV), in the establishment of the respondent No. 6, the petitioner was all along be required to work against a Gr-III post. It is submitted that the petitioner during the long period of service rendered by him, he had acquired the requisite expertise for working against a Gr-III post. 4. The petitioner further projected that being a graduate, he had the requisite eligibility criteria for being considered for promotion against the post of Junior Assistant lying vacant in the establishment of the Executive Engineer, PHE, Tangla Division (respondent No. 5). It is also projected that the name of the petitioner was forwarded by the respondent No. 5 and therein, also it was projected that the petitioner was discharging duties attached to Gr-III post. There being available vacant posts of Junior Assistant, in the establishment of the respondent No. 5, the petitioner’s case not being considered, the petitioner had approached the respondent authorities by way of a representation praying for promotion to the post of Junior Assistant, considering his educational qualification and also the experience garnered by him of working against a Gr-III post. It is projected that more than 08 (eight) vacancies were available in the establishment of the respondent No. 5 against the post of Junior Assistant, Page No.# 4/8 against which the petitioner can be so promoted. The petitioner’s promotion not being considered, the petitioner has instituted the present writ petition. 5. Mr. A. Ganguly, learned counsel for the petitioner by reiterating the facts noticed, hereinabove, has submitted that upon regularization of the services of the petitioner, the petitioner was brought to the regular cadre and was holding a sanctioned Gr-IV post in the establishment of the respondent No. 5. Accordingly, it is submitted that the petitioner being in the feeder cadre for promotion to the post of Junior Assistant and the petitioner having fulfilled the requisite eligibility criteria for the purpose, his case was required to be so considered for such promotion. It is submitted that the petitioner had during the long service rendered by him, garnered experience of works attached to a Gr-IV, inasmuch as, he was all along required to discharge works attached to a Gr-III post, although he was so regularized in his services as a Khalasi (Gr-IV). 5.1. In the above premises, it is submitted that a direction be issued to the respondent for consideration of the case of the petitioner for promotion to the cadre of Junior Assistant, by reckoning his educational qualification as well as the seniority. 6. Per contra, Mr. I. Borthakur, learned standing counsel, PHE and Ms. B. Bora, learned standing counsel, BTC, have submitted that the services of the petitioner was so regularized against a personnel post and the said post was to stand abolished as soon as the petitioner had relinquished his post in any manner. It is submitted that the post held by the petitioner was not encadred in the cadre of Gr-IV. Accordingly, it is submitted that it would not be permissible to consider the case of the petitioner for promotion to the next higher grade of Junior Assistant. Page No.# 5/8 7. I have heard the learned counsel for the parties and also perused the materials available on record. 8. At the outset it is to be noted that the petitioner who was engaged as a Muster Roll Worker, came to be regularized vide an order dated 04-03-2005, in terms of a policy decision adopted in this connection by the Govt. of Assam. The said regularization was so effected against a personal post created for the purpose by the respondent authorities. The petitioner admittedly was not encadred in a regular Gr-IV cadre in the establishment of the respondent No. 5 and he on his regularization continued to serve against a personnel post so created for the purpose. 9. In view of the submissions made by the learned counsel for the parties the issue that would arise for consideration in the present proceeding is as to whether the petitioner as a regularized Muster Roll Worker is entitled to be considered for promotion to the next higher grade of the service. 10. The said issue is no longer res-integra and the Division Bench of this Court in the case of Dilip Talukdar & 21 Ors., Vs State of Assam & Ors., reported in 2017(2) GLT 135, has held that when regularization of a Grade-IV work-charged worker has been done against a personnel post, the post held by those persons would be outside the cadre, i.e. an ex-cadre post. The Court further held that “unless a person who is holding an ex-cadre post is en- cadred into a cadre post, which is a feeder cadre to a higher cadre post, the person holding the personal post cannot be promoted to a higher cadre post. 11. A Co-ordinate Bench of this Court in the case of Kuladhar Talukdar & Others Vs. State of Assam & Ors., reported in 2021 0 Supreme (Gau) 94, examined the issue as to Page No.# 6/8 whether Muster Roll/ Work-Charged employees who had been regularized against the post which were made personnel to them, could be promoted and whether, their reversion to their regularized post was legally tenable. This Court, after going through various judgments, came to a finding that the said bunch of cases was covered by the judgment of the Division Bench of this Court in Dilip Talukdar (Supra), as well as decisions of the co-ordinate benches, wherein it was held that claim for promotion for a person holding an ex-cadre post was not legally tenable. The relevant paragraphs of the decision of the co-ordinate Bench in the case of Kuladhar Talukdar (Supra) are re-produced below:- “18. The present issue has already been decided by the Co-Ordinate Bench of this Court in WP(C) Nos. 2416/2014, 3116/2014 and 4254/2014. The petitioners, who were regularized Muster Roll/Work charge workers in the Water Resource Department, Govt. Of Assam filed WP(C) 2416/2014 (Sri Dilip Talukdar and 21 Others vs State of Assam and 5 Others) where they challenged their reversion to their original posts after being promoted. WP(C) 2416/2014 was disposed of by a Coordinate Bench of this Court on 16.03.2015, holding that when regularization of a Grade-IV Muster Roll/ Work-charge worker has been done against a personal post, the post held by those persons would be outside the cadre of Grade-IV post, i.e., an ex-cadre post. Unless a person who is holding an ex-cadre post is en-cadred into a cadre post, which is a feeder cadre to a higher cadre post, the person holding the personal post cannot be promoted to a higher cadre post. This Court thereafter dismissed the writ petition filed by the petitioners. WP(C) No. 3116/2014 was with regard to the claim of the petitioners therein for promotion from Grade-IV post to the post of Section Assistant, which is a Grade-III post. Here also, the petitioners who were in the Water Resource Department, Govt. of Assam had been regularized against posts which were made personal to them and which were to be abolished as soon as the incumbent relinquished the post in any manner. A Co-Ordinate Bench, after having discussed the manner of regularization of the petitioners therein and keeping in view the Office order dated 25.11.2013, issued by the Commissioner & Special Secretary to the Govt. of Assam, Water Resource Department held that the petitioners were not entitled to promotion to the post of Section Assistant and as such, had to be reverted back, as the post held by them were against Cadre post and as such, they could not be promoted to a regular post. 19. Being aggrieved, the writ petitioners in WP(C) No. 2416/2014 and WP(C) No. 3116/2014 thereafter filed appeals, vide W.A. No. 124/2015 & 111/2016 which is reported in 2017 2(GLT)135, “Dilip Talukdar & Others Vs. State of Assam & Ors.” Page No.# 7/8 The Division Bench dismissed the appeals on the ground that a claim for promotion from a person holding an ex-cadre post was not legally tenable. The Division Bench held that promotion in the Department can be considered only from eligible employees in the feeder cadre post and the writ petitioners being outside the cadre, they could not have any enforceable rights for promotion, particularly when the regularization order itself stipulates that they are regularized in a post personal to them. The extract of the order passed by the Division Bench in the case of Dilip Talukdar and 21 Ors, 2017(2) GLT 135, which is at paragraph 12 is reproduced below :- “12. We have seen the reasons recorded by the learned Judge for the impugned verdict and find that the posts against which the writ petitioners were regularized were never added to the notified cadre in the department. Yet no plea was advanced for encadrement of the posts held by the affected parties. The promotion in the department can be considered only from the eligible employees in the feeder cadre and the writ petitioner being outside of the cadre, cannot have any enforceable right to claim promotion, particularly when, the regularization order itself stipulates that they are regularized in posts personal to them. Such temporary creation of post cannot automatically add to the cadre strength of the department and claim for promotion from a person holding an ex-cadre post, is not legally tenable. Therefore we see no basis to take a different view in the matter than the one taken by the learned Single Judge, in dismissing the cases”. 12. The decisions of this Court noticed herein above, lays down that unless the ex-cadre post held by a person, is en-cadred with the cadre, which forms the feeder cadre for promotion to the next en-cadre post, he cannot be promoted to the next higher post. In the present writ petition, it is seen that the petitioner has not sought any relief for en-cadrement of the post held by him. The post held by the petitioner being admittedly a personnel post, the same having not been encadred in the regular Grade-IV cadre of the service, this Court is of the considered view that the petitioner cannot claim for inclusion of his name in the gradation list of the incumbents in the regular Grade-IV grade of the service, for the purpose of consideration of his case for promotion. 13. The order of regularization of the services of the petitioner, having specifically mandated that such regularization to have been effected against posts created personnel to Page No.# 8/8 him, the petitioner cannot have an enforceable rights to claim promotion to the higher cadres of the service, when he is himself placed in an ex-cadre post outside the hierarchy of the posts of the service. Accordingly, the claim made by the petitioner for consideration of his case for promotion, in the considered view of this Court, is also not legally tenable. 14. In view of the above discussions, this Court is of the considered view that the present writ petition is devoid of any merit and accordingly, the same stands dismissed. However, there would be no order as to cost. JUDGE Comparing Assistant